United States v. Shaygan

• Decision Date: 10 April 2012
• Docket Number: No. 09–12129.,09–12129.
• Citation: 23 Fla. L. Weekly Fed. C 925,676 F.3d 1237
• Parties: UNITED STATES of America, Plaintiff–Appellant,Andrea G. Hoffman, Sean Paul Cronin, Interested–Parties–Appellants, v. Ali SHAYGAN, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 925

676 F.3d 1237

UNITED STATES of America, Plaintiff–Appellant,Andrea G. Hoffman, Sean Paul Cronin, Interested–Parties–Appellants,

v.Ali SHAYGAN, Defendant–Appellee.

No. 09–12129.

United States Court of Appeals, Eleventh Circuit.

April 10, 2012.

Robert C. Josefsberg, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Anne R. Schultz, Asst. U.S. Atty., Laura Thomas Rivero, Miami, FL, Roberto Martinez, Maureen Elizabeth Lefebvre, Susan Tarbe, Colson Hicks Eidson, Coral Gables, FL, Kirby A. Heller, U.S. Dept. of Justice, Washington, DC, for Appellants.

David O. Markus, David Oscar Markus, PLLC, Miami, FL, for Defendant–Appellee.

G. Richard Strafer, G. Richard Strafer, P.A., Miami, FL, for American Civil Liberties Union of Florida, Amicus Curiae.H. Scott Fingerhut, Miami, FL, for Nat. Ass'n of Criminal Defense Lawyers, Amicus Curiae.Appeal from the United States District Court for the Southern District of Florida (No. 08–20112–CR–ASG); Alan S. Gold, Judge.ON PETITION FOR REHEARING EN BANCBefore DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and MARTIN, Circuit Judges.^*BY THE COURT:

The court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the Suggestion of Rehearing En Banc and the Petition for Rehearing are DENIED.

PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

I reluctantly write this opinion respecting the denial of rehearing en banc to respond to the dissenting opinion that follows. Judge Henry Friendly once observed that the practice of publishing a dissent about a decision in which the dissenter “did not participate” and “the Court has declined to review ... en banc” is “of dubious policy.” United States v. New York, New Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir.1960) (Friendly, J., concurring in denial of reh'g en banc, joined by Lumbard, C.J.). And Judge Raymond Randolph, who clerked for Judge Friendly, perhaps put it best: “[D]enials of rehearing en banc are best followed by silence. They should not serve as the occasion for an exchange of advisory opinions, overtures to the Supreme Court, or press releases.” Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C.Cir.1992) (Randolph, J.). But, alas, “dissents from denial of rehearing en banc are now routine.” Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006 Wis. L.Rev. 1315, 1317; see also Sahyers v. Prugh, Holliday & Karatinos, P.L., 603 F.3d 888, 889 (11th Cir.2010) (Edmondson, J., concurring in denial of reh'g en banc) (questioning “the fashion” of filing “dissents regularly when en banc rehearing is denied”).

The original panel opinion speaks for itself, but I write, as the author of that opinion, to set the record straight about a matter that the dissent misunderstands. The Hyde Amendment allows for the extraordinary remedy of invading the public fisc to pay an acquitted criminal defendant's attorney's fees, and this rare waiver of sovereign immunity applies only when a court determines that the entire “position of the United States was vexatious, frivolous, or in bad faith.” Pub.L. No. 105–119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes). The “position” of the United States is expressed as a singular term for obvious reasons. Congress expected a court to assess the overall prosecution of a defendant and not base an award of fees only on discrete actions that took place during that prosecution. Traditional sanctions exist for discrete wrongs like discovery violations that occur during an otherwise reasonable prosecution, but an award of attorney's fees under the Hyde Amendment is not one of those sanctions. The Hyde Amendment is concerned with wrongful prosecutions, not wrongs that occur during objectively reasonable prosecutions. The district court erred in when it held otherwise, and the dissent fails to grasp this distinction.

I. BACKGROUND

The panel opinion provides a thorough discussion of the facts underlying this appeal, United States v. Shaygan, 652 F.3d 1297, 1302–10 (11th Cir.2011), but some of those facts, which are unmentioned in the dissent, merit special review. Most notably, the United States began its investigation and prosecution of Ali Shaygan with more than good cause: it all started with a suspicious death.

On June 9, 2007, James Brendan Downey died from an overdose of various drugs including methadone and cocaine. An autopsy revealed that the level of methadone in Downey's blood was alone enough to kill him. Two days before Downey died, Dr. Shaygan had prescribed methadone to Downey.

Downey's girlfriend, Crystal Bartenfelder, testified that she had visited Shaygan's office with Downey on June 7, 2007, and that Shaygan had not conducted any kind of physical examination of Downey. She testified that, during the same visit, Downey asked Shaygan for more oxycodone than he had previously been prescribed. She testified that Shaygan expressed concern that the increased amount of oxycodone would look suspicious, so Shaygan suggested methadone, which Downey accepted. Bartenfelder was with Downey the night he died, and she testified that he died in his sleep after taking the methadone.

After Downey's death, the Drug Enforcement Administration conducted an undercover investigation of Shaygan. Two local police officers posed as prospective patients to determine how easily they could obtain prescriptions of controlled substances from Shaygan. They recorded their conversations and obtained prescriptions for several controlled substances during their first visits to Shaygan's office. The officers presented no medical records and were given minimal physical examinations during these visits.

On February 8, 2008, the government filed an indictment that charged in 23 counts that Shaygan had distributed and dispensed controlled substances outside the scope of professional practice and not for a legitimate medical purpose in violation of federal law. See 21 U.S.C. § 841(a)(1). When the indictment was filed, the government had not yet identified any of Shaygan's other patients. On February 11, 2008, Administration agents arrested Shaygan and obtained his consent to search his office. The agents seized patient files and Shaygan's day planner. The agents used information from the day planner to identify additional patients of Shaygan, and evidence regarding these patients formed the basis for additional counts contained in a superseding indictment filed on September 26, 2008.

Before trial began, Sean Cronin, one of the two prosecutors on the case, suspected that Shaygan's defense team might be tampering with potential witnesses. He and his fellow prosecutor, Andrea Hoffman, spoke with their supervisor at the United States Attorney's Office, Karen Gilbert, who permitted Drug Enforcement Agent Christopher Wells to ask two potential government witnesses to record calls with the defense team. Gilbert instructed Cronin that she would be responsible for the collateral investigation and that Cronin and Hoffman should take no part in the investigation. Gilbert also instructed Agent Wells not to disclose information about the collateral investigation to Cronin or Hoffman. Agent Wells spoke with the two witnesses, who agreed to record conversations with the defense team. One of the witnesses, Carlos Vento, later signed a confidential informant agreement. Agents filed DEA–6 reports that documented that Vento and the other witness, Trinity Clendening, had recorded conversations with the defense team and that Vento had signed a confidential informant agreement.

At a status conference the week before trial, the district court ordered the government to turn over any DEA–6 reports so that the court could read them before trial to determine if they contained any exculpatory material that should be given to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Two days later, Cronin filed DEA–6 reports for several witnesses. Cronin had asked Agent Wells for all DEA–6 reports, but Cronin did not ask specifically for those generated in the collateral investigation. The government did not produce the DEA–6 reports related to the collateral investigation.

At trial, the government presented a wealth of evidence to suggest that Shaygan had distributed and dispensed controlled substances outside the scope of professional practice and not for a legitimate medical purpose in violation of federal law. See Shaygan, 652 F.3d at 1305–06. Downey's girlfriend testified that Shaygan, without conducting any physical examination, prescribed Downey the methadone that killed Downey two days later. Id. at 1305. Three of Shaygan's former associates testified that Shaygan routinely wrote them prescriptions for controlled substances without any legitimate medical purpose. Id. The two undercover police officers testified. The government played tape recordings of their conversations with Shaygan for the jury, and the officers explained how Shaygan had provided them prescriptions for controlled substances. Id. Four of Shaygan's former patients gave testimony consistent with the prosecution's theory. Id. at 1305–06. Two other patients gave testimony that did not support the prosecution's theory, but the patients' earlier statements and evidence from their medical files did. Id. at 1306.

During the cross-examination of Clendening, Clendening mentioned a recording he had of a conversation with one of Shaygan's attorneys. The next day, the government explained to the court the recordings and the collateral investigation. The district court allowed the defense to call Vento and Clendening again for cross-examination. The court instructed the jury that the defense...